Carroll v. Virga et al

Filing 3

ORDER signed by Magistrate Judge Kendall J. Newman on 10/7/11 DENYING without prejudice 1 Motion for TRO; Plaintiff is granted 30 days from the date of service of this order to file a complaint that complies with the requirements of the Civil Right s Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; Clerk of the Court is directed to send plaintiff the courts form for filing a civil rights action, and the application to proceed in forma pauperis by a prisoner.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TREMAYNE D. CARROLL,

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Plaintiff,

No. 2:11-cv-2611 KJN P

vs.
WARDEN TIM VIRGA, et al.,
Defendants.

ORDER
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Plaintiff, a state prisoner housed at California State Prison, Sacramento (CSP-

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SAC), filed a document styled “Order to Show Cause for a Preliminary Injunction and

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Temporary Restraining Order.” (Dkt. No. 1.) Plaintiff seeks a court order enjoining defendants

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from transferring plaintiff to “prisons where ‘The Green Wall’ ha[s] a stronghold (HDSP, SVSP,

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CSP-COR, RJD, KVSP, NKSP, PBSP).” (Dkt. No. 1 at 2.) Plaintiff claims defendants are not

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“honoring [the] confidential contract signed by petitioner, C/O Camp and Warden Tim Virga to

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house [plaintiff] at CSP-SAC or Mule Creek State Prison only for plaintiff’s safety, and out of

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[administrative segregation (“ad seg”)].” (Id.) Plaintiff states he “has been the victim of several

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physical/sexual assaults by staff, threats/torture by CDCR (CSP-SAC, CSP-COR, CMF, PVSP)

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from Feb. 7, 2011 thr[ough] the present.” (Dkt. No. 1 at 1.) Plaintiff alleges “these attacks are

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based on [plaintiff] writing up the illegal activities of the rogue and corrupt ‘Green Wall’
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officials at CSP-SAC who operate outside of the law, outside of CDCR policy and under the

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Code of Silence with no regard of consequences.” (Id.)

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Plaintiff is presently housed at CSP-SAC in ad seg.

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No other pleadings have been filed by the plaintiff. In order to commence an

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action, plaintiff must file a complaint as required by Rule 3 of the Federal Rules of Civil

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Procedure, and plaintiff must either pay the required filing fee or file an application requesting

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leave to proceed in forma pauperis.1 See 28 U.S.C. §§ 1914(a), 1915(a). The court will not issue

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any orders granting or denying relief until an action has been properly commenced. Therefore,

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plaintiff’s motion will be denied without prejudice. Plaintiff will be provided the opportunity to

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file his complaint, and to submit an application requesting leave to proceed in forma pauperis or

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to submit the appropriate filing fee.

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Plaintiff is cautioned that a prisoner may bring no § 1983 action until he has

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exhausted such administrative remedies as are available to him. 42 U.S.C. § 1997e(a). The

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requirement is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001).

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s October 4, 2011 request (dkt. no. 1) is denied without prejudice;

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2. Plaintiff is granted thirty days from the date of service of this order to file a

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complaint2 that complies with the requirements of the Civil Rights Act, the Federal Rules of

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Civil Procedure, and the Local Rules of Practice; the complaint must bear the docket number

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assigned this case; plaintiff must file an original and two copies of the complaint. Plaintiff shall

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also submit, within thirty days from the date of this order, the application to proceed in forma

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pauperis on the form provided by the Clerk of Court, or the filing fee in the amount of $350.00.

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If leave to file in forma pauperis is granted, plaintiff will still be required to pay the
filing fee but will be allowed to pay it in installments.
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Plaintiff is cautioned that if the alleged contractual agreement was filed with a court,
and plaintiff is seeking to enforce that agreement, plaintiff must file his action in the court in
which the agreement was entered.
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Plaintiff's failure to comply with this order will result in a recommendation that this matter be

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dismissed; and

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3. The Clerk of the Court is directed to send plaintiff the court’s form for filing a

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civil rights action, and the application to proceed in forma pauperis by a prisoner.

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DATED: October 7, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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carr2611.noc

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